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Exhibit 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement ("Agreement")
is entered into effective May 1, 1996 between REMEDYTEMP, INC., a California
corporation (the "Company"), and Robert E. McDonough, Sr.
("McDonough") (collectively referred to herein as the "Parties").
WHEREAS, an Employment Agreement (the "Original Agreement")
was entered into effective December 5, 1994 between the Company and McDonough;
WHEREAS, this Agreement has been prepared to amend the
Original Agreement to respond to certain requests of Dillon, Read & Co., Inc.,
the Company's underwriter in its proposed initial public offering of stock, and
its legal counsel and to implement certain understandings reached between the
Company and McDonough;
WHEREAS, McDonough has served as Chairman of the Board of the
Company ("Chairman") since its inception and Chief Executive Officer from its
inception until May 2, 1994; and
WHEREAS, the Company desires to maintain the benefits of
having McDonough continue to serve as Chairman and McDonough desires to continue
to serve as Chairman.
WHEREAS, the term of the Original Agreement ends on December
4, 2001.
NOW, THEREFORE, in consideration of the foregoing premises,
the Parties hereby amend and restate the Original Agreement and agree to the
following terms and conditions under which McDonough will serve as Chairman.
1. EMPLOYMENT SERVICES AND DUTIES
The Company agrees to employ and retain the services of
McDonough as Chairman, and McDonough hereby agrees to continue employment with
the Company as its Chairman, for the term of this Agreement. McDonough agrees to
perform his duties as Chairman of the Board faithfully, to the best of his
ability and in the best interests of the Company, and to preserve and protect
the confidential information of the Company, and to perform both his regular
duties and strategic projects as requested by the Board of Directors.
2. TERM OF EMPLOYMENT
The Company agrees to employ McDonough, and McDonough agrees
to serve, as Chairman for the period commencing May 1, 1996 and ending on
December 4, 2001 (the "Employment Period").
3. COMPENSATION TERMS
The Company agrees to compensate McDonough for his services
rendered as Chairman under this Agreement as follows:
(a) Effective May 1, 1996, for the Employment Period,
McDonough shall receive a base salary of $390,000 per year.
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(b) McDonough shall receive such annual bonuses as
determined by the Board of Directors of the Company in its sole and absolute
discretion; provided, however, that for each fiscal year during the term of this
Agreement McDonough's bonus shall be no less than $160,000 and no more than
$390,000 dependent on his performance and the Company's satisfaction of certain
performance goals set annually by the Compensation Committee of the Board of
Directors and, provided, further, that during the term of that certain
Employment Agreement dated effective May 1, 1996, between the Company and Paul
W. Mikos as Chief Executive Officer of the Company, McDonough's bonus shall be
determined on the same basis and in the same amount as that of the Chief
Executive Officer.
(c) McDonough shall be entitled to and shall receive
any and all other benefits generally available to executive employees of the
Company, including participation in health insurance programs and retirement
plans.
(d) The Company shall pay any and all of McDonough's
existing life insurance premium payments as well as any additional life
insurance premium payments that McDonough shall deem reasonably appropriate. In
the event that McDonough is no longer Chairman or employed by the Company in any
other capacity, the Company shall continue to pay such premiums as required
under each and every life insurance policy. Notwithstanding the above, the total
sum of annual life insurance premium payments made by the Company for McDonough
shall not exceed $50,000 per year.
(e) The Company shall indemnify McDonough in
accordance with the terms and conditions of its then current indemnification
agreements with directors of the Company.
(f) In the event that McDonough becomes disabled and
is unable to perform his duties as Chairman of the Board, he shall continue to
receive as disability income the amount of his base salary under Section 3(a),
but the Board of Directors may elect another person to serve as Chairman of the
Board during the period of McDonough's disability.
4. REGISTRATION RIGHTS
The Company shall grant McDonough certain defined registration
rights for the stock of the Company owned by McDonough, individually or in a
fiduciary capacity, as set forth in that certain Registration Rights Agreement
attached hereto as Exhibit A and executed concurrently herewith.
5. SEVERABILITY
The provisions of this Agreement are severable. If a court of
competent jurisdiction determines that any one or more provisions of this
Agreement is invalid, void or unenforceable, in whole or in part, it will be
severed therefrom. The remaining provisions of this Agreement shall then
continue in full force without being impaired or invalidated in any way.
6. BINDING EFFECT; ASSIGNMENT
This Agreement shall inure to the benefit of and be binding on
the parties and their respective successors and assigns.
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7. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between
the parties concerning the subject matter hereof. This Agreement supersedes all
negotiations, prior discussions and preliminary agreements. This Agreement may
not be amended except in a writing executed by the Parties.
8. GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
9. NOTICES
All notices, requests, demands and other communication
required or contemplated under this Agreement shall be in writing and shall be
deemed to have been duly given when delivered personally or when enclosed in a
properly sealed and addressed envelope, registered or certified, and deposited
(postage prepaid) in a post office or branch post office regularly maintained by
the United States Government.
Any notice given to the Company under the terms of this
Agreement shall be addressed to the Company at the address of its principal
place of business. Any notice to be given to McDonough shall be addressed to him
at his home address last shown on the Company's records, or at such other
address as either party may hereafter designate in writing to the other.
10. WAIVER
No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute, a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
11. COUNTERPARTS
This Agreement may be executed in counterparts, and such
counterparts may be transmitted by facsimile, and all counterparts, taken
together, will constitute one and the same document.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement effective May 1, 1996.
REMEDYTEMP, INC.
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Robert E. McDonough, Sr.
By:
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Name:
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Title:
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